A weblog for students engaged in doctoral studies in the field of human rights. It is intended to provide information about contemporary developments, references to new publications and material of a practical nature.

Monday, 2 August 2010

Developments during Vacation Time

I’ve not been a very active blogger for the past couple of weeks. been exercising my rights under article 24 of the Universal Declaration of Human Rights (‘Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.‘), vacationing in Canada with my grandsons.

Just before I left, I was in The Hague lecturing at the Academy, which is located in the premises of the International Court of Justice. I didn't manage to have dinner with Lubanga, because the Trial Chamber of his release was suspended by the Appeals Chamber.
By chance, I was at the Peace Palace when the Court issued the Kosovo advisory opinion. Space was at a premium in the Court itself and tickets were not available (although there seemed to be lots of empty seats). A crowd gathered in the adjacent building, where the videolink was broadcast of the reading of the opinion (see photo).
The Court has taken a very cautious approach to this very tendentious issue, ruling only that a declaration of independence was not prohibited by international law. It declined to pronounce itself on the greater issues of self-determination and rights of secession. My suggestion to students who are trying to understand what the Court did and did not say is to read the various individual and dissenting opinions. They put a rather flat opinion into three dimensions, providing us with a way to understand where the difficulties and the fault lines are to be found.
There have been some interesting developments at the international criminal tribunals. Here are a few of them:

• At the International Criminal Tribunal for the former Yugoslavia, the Appeals Chamber granted a prosecution appeal and ordered a new trial for Ramush Haradinaj. It is apparently the first time that a new trial has been order following an acquittal at first instance.

• At the International Criminal Court, a complaint is lodged by an NGO concerning the op-ed of Luis Moreno-Ocampo on the Bashir genocide decision (about which I made some comments in an earlier posting on this blog)

At the Extraordinary Chambers of the Courts of Cambodia, the first conviction was registered.against Kaing Guek Eav (alias Duch), who was the chief of Tuol Sleng prison under the Khmer Rouge regime. He was convicted of crimes against humanity and war crimes. It bears repeating that he was not even charged with genocide. This is another curious footnote in the evolving debate about the scope of genocide. For three decades, there has been talk of the ‘Cambodian genocide’. Yet in this historic conviction, the word does not appear. Duch was not charged with genocide, of course. We have an example of prosecutorial restraint based upon a sober reading of international law, in stark contrast to the extravagance of the Office of the Prosecutor at the International Criminal Court.
Duch was sentenced to 35 years in prison, of which five years were cut because of illegal detention for several years. Duch is also entitled to an 11-year reduction for time served since his arrest. That means that he has another 19 years to serve. Duch is currently 67 years of age.
There has been some consternation about this sentence, which some feel to be too lenient. In my view, it is very much in keeping with the norms of international law. Even if Duch had been sentenced to life imprisonment, he would be entitled to have the illegal detention as well as his time served taken into account. The result would probably be the same, in that he would have his detention reconsidered for purposes of release on parole after a certain number of years.
Duch’s trial was never in doubt because he confessed to the charges. He has shown remorse. The idea that such a man could be released when he reaches the age of eight-six, after having spent thirty years in jail, should not shock anybody.Thanks to the many contributors who have alerted me to these decisions, including Dov Jacobs and Nilofar Sarwar.

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The Editorial Team

W. Schabas, Y. McDermott, J. Powderly, N. Hayes

William A. Schabas is professor of international law at Middlesex University in London. He is also professor of international criminal law and human rights at Leiden University, emeritus professor human rights law at the Irish Centre for Human Rights of the National University of Ireland Galway, and an honorary professor at the Chinese Academy of Social Sciences, in Beijing and Wuhan University. He is the author of more than 20 books and 300 journal articles, on such subjects as the abolition of capital punishment, genocide and the international criminal tribunals. Professor Schabas was a member of the Sierra Leone Truth and Reconciliation Commission. He was a member of the Board of Trustees of the United Nations Voluntary Fund for Technical Cooperation in Human Rights and president of the International Association of Genocide Scholars. He serves as president of the Irish Branch of the International Law Association chair of the Institute for International Criminal Investigation. He is an Officer of the Order of Canada and a member of the Royal Irish Academy. Here is the full c.v.

Dr YvonneMcDermott is Senior Lecturer in Law at Bangor University, UK, where she is also Director of Teaching and Learning and Co-Director of the Bangor Centre for International Law. Yvonne is a graduate of the National University of Ireland, Galway (B. Corp. Law, LL.B.), Leiden University (LL.M. cum laude) and the Irish Centre for Human Rights (Ph.D.). Her research focuses on fair trial rights, international criminal procedure and international criminal law. She is the author of Fairness in International Criminal Trials (Oxford University Press, 2016).

Niamh Hayes has been the Head of Office for the Institute for International Criminal Investigations (IICI) in The Hague since September 2012. She is about to complete her Ph.D. on the investigation and prosecution of sexual violence by international criminal tribunals at the Irish Centre for Human Rights, National University of Ireland Galway. She previously worked for Women's Initiatives for Gender Justice as a legal consultant, and as an intern for the defence at the ICTY in the Karadzic case. She has lectured on international criminal law and international law at Trinity College Dublin and, along with Prof. William Schabas and Dr. Yvonne McDermott, is a co-editor of The Ashgate Research Companion to International Criminal Law: Critical Perspectives (Ashgate, 2013). She is the author of over 45 case reports for the Oxford Reports on International Criminal Law and has published numerous articles and book chapters on the investigation and prosecution of sexual and gender-based violence as international crimes.

Joseph Powderly is Assistant Professor of Public International Law at the Grotius Centre for International Legal Studies, Leiden University. Between September 2008 and January 2010, he was a Doctoral Fellow/Researcher at the Irish Centre for Human Rights, where he worked, among other projects, on a Irish Government-funded investigation and report into the possible perpetration of crimes against humanity against the Rohingya people of North Rakhine State, Burma/Myanmar. He is currently in the process of completing his doctoral research which looks at the impact of theories of judicial interpretation on the development of international criminal and international humanitarian law. The central thesis aims to identify and analyze the potential emergence of a specific theory of interpretation within the sphere of judicial creativity. Along with Dr. Shane Darcy of the Irish Centre for Human Rights, he is co-editor of and contributor to the edited collection Judicial Creativity in International Criminal Tribunals which was published by Oxford University Press in 2010. He has written over 80 case-reports for the Oxford Reports on International Criminal Law, as well as numerous book chapters and academic articles on topics ranging from the principle of complementarity to Irish involvement in the drafting of the Geneva Conventions. In December 2010, he was appointed Managing Editor of the peer-reviewed journal Criminal Law Forum. His research interests while focusing on international criminal and international humanitarian law also include topics such as the history of international law and freedom of expression.

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Interested in PhD studies in human rights?

Students interested in pursuing a doctorate in the field of human rights are encouraged to explore the possibility of working at Middlesex University under the supervision of Professor William A. Schabas and his colleagues. For inquiries, write to: w.schabas@mdx.ac.uk.